2020 IL App (1st) 161746-U No. 1-16-1746 Order filed January 17, 2020 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 00435 ) STEPHAN CAPLES, ) Honorable ) Stanley J. Stacks, Defendant-Appellant. ) Judge, Presiding. )
JUSTICE HALL delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Defendant's conviction and sentence for aggravated battery with a firearm affirmed where he forfeited review of the trial court's bar of the victim's juvenile record as impeachment evidence; the trial court did not improperly limit his cross examination of a witness; the State's closing argument did not improperly shift the burden of proof; instructions for a lesser-included offense were not required; and his sentence was not excessive.
¶2 Following a jury trial, defendant Stephan Caples was convicted of aggravated battery
with a firearm (720 ILCS 5/12–3.05(e)(1) (West 2012)) and sentenced to 14 years' No. 1-16-1746
imprisonment. On appeal, defendant contends that: (1) the trial court erred by denying his
request to impeach the victim, T.B., with his juvenile record; (2) the trial court improperly
denied his right to cross-examine Derrick Caldwell (Caldwell) about his possible bias and
incentive to lie; (3) the State's closing argument shifted the burden of proof to him by improperly
commenting on his decision not to testify; (4) the trial court erred in denying his request for a
jury instruction on aggravated discharge of a firearm as a lesser-included offense of aggravated
battery with a firearm; and (5) his 14-year sentence was excessive for a first-time felony offense
and should be reduced. For the following reasons, we affirm. 1
¶3 BACKGROUND
¶4 As a result of a shooting on November 9, 2013, in Chicago, defendant was charged with
six counts of attempted first degree murder, one count of aggravated battery with a firearm and
two counts of aggravated discharge of a firearm. The State subsequently nol-prossed the
aggravated discharge of a firearm counts and proceeded to trial on the remaining charges.
¶5 The following facts adduced at trial are not in dispute.
¶6 The State called T.B., who was a minor at the time of the shooting. Prior to T.B. taking
the stand, defendant requested to use T.B.'s previous juvenile adjudication for impeachment, and
the following colloquy took place:
"MS. PRUSAK [(DEFENSE COUNSEL)]: Judge, I apologize
for the timeliness of this, but I was given criminal history of the
witnesses as the jurors were being bought [sic] out today.
THE COURT: Okay.
1 This case was assigned to the authoring justice on February 5, 2019, but was not fully briefed until February 13, 2019. The disposition was first circulated to the panel members on January 10, 2020.
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MS. PRUSAK: Upon review, I see that this witness had
a juvenile adjudication for residential burglary.
MS. PRUSAK: It is our position that it should be
allowed for impeachment purposes only.
THE COURT: I don't believe it is.
MR. MOORE [(ASSISTANT STATE'S ATTORNEY)]:
Juvenile convictions don't come in, your Honor.
THE COURT: No, they don't. I agree with the State. Anything
else?
MS. PRUSAK: No."
¶7 T.B. testified that at approximately 8 p.m. on November 9, 2013, he was standing with a
group of friends on the 8600 block of South Lowe Avenue. A red Chevrolet Camaro pulled up
and two men got out. The two men spoke to the group but T.B. could not hear what they said.
The two men then returned to the car and left.
¶8 A half hour later, T.B. and four or five friends from the group were walking on the 8900
block of South Union Street when the same Camaro pulled up approximately five or six feet
away. The passenger, who T.B. identified as defendant, rolled down his window and asked the
group if they knew where to get weed. When they answered in the negative, T.B. saw defendant
pull out a silver semi-automatic pistol and shoot at the group. The group scattered but T.B. was
shot in the ankle and fell to the ground. After T.B. was on the ground, he was shot again in the
back of his thigh before the shots stopped and the Camaro drove off.
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¶9 T.B. was treated for his injuries at Christ Hospital, including surgery to repair a broken
leg, insertion of a permanent metal rod from his hip to his knee, and four screws.
¶ 10 Derrick Caldwell testified for the State that on November 9, 2013, he was driving his red
Camaro near 8900 South Lowe Avenue when he saw defendant. He and defendant were
acquaintances; he knew that defendant's uncle recently passed away and stopped to give his
condolences. Caldwell invited defendant into his car and the two drove to a liquor store. After
leaving the store, the two drove to Caldwell's grandmother's house at 89th Street and South Lowe
Avenue. When they arrived, Caldwell noticed a group of four or five younger men standing on
the nearby corner. Defendant told Caldwell that he thought that was the group who shot his
uncle. Caldwell stepped out of his car and questioned the group to "diffuse the situation;" the
group stated that they knew nothing about the shooting. Afterwards, Caldwell went inside, then
returned to the car. Caldwell then drove defendant to a relative's house so defendant could pick
up some money, and he waited in the car while defendant went inside for a few minutes before
he returned to the car.
¶ 11 As Caldwell drove back towards his grandmother's house, he and defendant noticed a few
men from the group they saw earlier walking near 8800 South Union Avenue. Defendant told
Caldwell to slow the car down as it approached the group. Defendant rolled down the window,
asked the group for weed, pulled out a gun and started shooting. Caldwell testified that he pulled
off when defendant started shooting. When he asked defendant why he shot at the group,
defendant responded "my bad" and that he should not have shot at them.
¶ 12 Caldwell then drove defendant back to his relative's house and again waited in the car
while defendant went inside. When defendant returned, they drove back to Caldwell's
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grandmother's neighborhood, and the police pulled him over. Caldwell stated that he was
hysterical and aggravated when he was pulled over. The police took defendant's information but
let him go and arrested Caldwell, although he was released the next day. On November 19, 2013,
the police arrived to Caldwell’s home with a search warrant for his home and car, and he was
taken to the station for questioning.
¶ 13 On cross-examination, Caldwell testified that he thought he was arrested and told
conflicting stories during his police interviews to "protect Stephan." During his first interview,
Caldwell told police that he and defendant were cruising around all day until Officer Richardson
pulled them over. During his second interview, Caldwell stated that he was out with defendant
and picked up defendant’s cousin, who spoke to the group and shot at them. During his third
interview, Caldwell stated that defendant was the shooter as he testified at trial. During
Caldwell's cross-examination, the trial court sustained the State's objections to questions about
whether police arrested and charged Caldwell with any crimes related to the shooting.
¶ 14 Chicago Police officer Monica Richardson testified that she was assigned to the post-
shooting investigation. At approximately 9:30 p.m., she saw a red Camaro matching the
description of the suspect vehicle run a stop sign. She curbed the car and arrested the driver after
he exited in an aggressive manner. She testified that she did not arrest defendant because the
victim was in surgery and the officers had no information at that time as to the shooter.
¶ 15 Detective Joseph Madden testified that after the shooting, he and his partner Joseph
McGuire interviewed the victim at the hospital. The victim described the Camaro, and gave
descriptions of the driver and passenger.
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¶ 16 After Caldwell's initial arrest, the officers returned to the hospital on November 10, 2013,
and showed the victim a photo array which included defendant and Caldwell. The victim
identified defendant as the passenger who shot at his group and Caldwell as the driver.
¶ 17 On November 19, 2013, police went to Caldwell's house with a search warrant for his
house and car. During the search, police found a gun case for a validly-owned gun, and a receipt
for another gun that Caldwell indicated was stolen. After the searches, police arrested Caldwell
for the shooting, and he gave police conflicting accounts of the shooting. The next day, police
released Caldwell and issued an investigative alert for defendant's arrest.
¶ 18 On December 2, 2013, the victim identified defendant as the shooter from a lineup.
Defendant was then arrested and charged with the shooting.
¶ 19 At the close of the State's evidence, the parties stipulated that police recovered six
cartridges that were fired from the same firearm at the scene. The State entered its exhibits into
evidence and rested.
¶ 20 Defense counsel's motion for directed finding was denied and the defense rested without
presenting any evidence or witnesses.
¶ 21 During the jury instruction conference, defendant requested that the trial court give
instructions for aggravated discharge of a firearm as a lesser-included offense of both attempted
murder and aggravated battery with a firearm. Defendant asserted that aggravated discharge of a
firearm only required knowingly discharging a firearm and that based on the evidence presented
at trial, the jury was entitled to that instruction as a less serious option. Defendant further stated
that the state of mind for aggravated discharge of a firearm was different than the state of mind
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for aggravated battery, and there was no evidence presented that defendant shot in T.B's direction
with the intent to specifically hurt him.
¶ 22 The trial court responded that aggravated discharge of a firearm was not a lesser-
included offense of either aggravated battery with a firearm or attempted murder because the
shots fired were not "just a shot in someone's direction. It was a shot that actually hit the guy
twice." After the court requested the State's position, the State responded that the evidence at trial
specified that shots were fired at the victim and he was struck twice.
¶ 23 The court rejected defendant's request, and stated that it agreed with the State that the trial
evidence did not support the instruction. The court further stated that the defendant could argue
in closing argument that he did not have the intent to shoot T.B., but that argument did not mean
that aggravated discharge with a firearm was a lesser-included offense to aggravated battery with
a firearm or attempted murder, but a separate offense.
¶ 24 During closing arguments, defense counsel contended that Caldwell had motive to lie to
keep himself off the "hotplate." In rebuttal, the State argued that the jury could only consider the
presented evidence and should not be confused by "anything else." The following colloquy
occurred during the State's closing:
"MR. MOORE [(ASSISTANT STATE'S ATTORNEY)]: [A]nd
he's confronted with his own inconsistencies, Derrick Caldwell finally
tells the truth, Yeah, [sic] it was Stephan Caples. It's Stephan Caples.
He's the shooter.
There's no evidence that indicates otherwise up here. Did
you hear anything up here that indicates anything else than the
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defendant being the shooter?"
MS. PRUSAK [(DEFENSE COUNSEL)]: Judge, I object to that.
THE COURT: Pardon?
MS. PRUSAK: The burden is not on us. I object to that.
THE COURT: He wasn't shifting the burden at all. He said
from up here. Overruled."
¶ 25 The jury convicted defendant of aggravated battery with a firearm. Defendant filed a
motion for new trial, contending that: he was not proven guilty beyond a reasonable doubt; the
trial court erred in preventing him from using T.B.’s juvenile adjudication for impeachment and
restricting cross-examination of Caldwell for bias and motive; and the trial court erred in denying
a jury instruction for aggravated discharge of a firearm. The trial court summarily denied the
motion.
¶ 26 At defendant's sentencing hearing, the State presented evidence in aggravation that
defendant had a juvenile record and he planned the shooting by retrieving a gun prior to it. In
mitigation, defendant presented positive letters from his family; evidence that he had two young
children who depended on him; and his lack of any adult criminal history or gang involvement.
The trial court stated that it considered all presented evidence and sentenced defendant to 14
years' imprisonment. This timely appeal followed.
¶ 27 ANALYSIS
¶ 28 On appeal, defendant contends that: (1) he was denied a fair trial when the trial court
denied his request to impeach T.B. with his juvenile record; (2) the trial court improperly denied
his right to cross-examine Caldwell about his possible bias and incentive to lie; (3) the State's
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closing argument shifted the burden to him by improperly commenting on his decision not to
testify; (4) the trial court erred in denying an instruction on aggravated discharge of a firearm as
a lesser included offense of aggravated battery with a firearm; and (5) his 14-year sentence was
excessive for a first-time felony offense and should be reduced.
¶ 29 A. Limitation of Cross-Examination
¶ 30 Defendant's first two issues on appeal relate to his cross-examinations of T.B. and
Caldwell. Defendant contends that the trial court improperly limited his cross-examination of
T.B. when it denied his request to impeach him with his juvenile record because it failed to
conduct the balancing test mandated by Illinois Rule of Evidence 609(d) (eff. Jan. 1, 2011) in its
ruling. He also contends that the court improperly sustained the State's objections to defense
counsel's questions to Caldwell about whether he was arrested or charged in connection to this
case, thus preventing counsel from exploring whether Caldwell had potential bias and incentive
to lie. Defendant asserts that because the State's case rested mainly upon T.B.'s credibility, and
because Caldwell was the only witness to testify to the events of the entire evening and provide
defendant's alleged motive for the shooting, these errors were not harmless.
¶ 31 The record indicates that defendant made no offer of proof at trial in connection with
these lines of questioning, and the State contends that defendant forfeits review of these two
issues. See People v. Staake, 2017 IL 121755, ¶ 51. We agree.
¶ 32 A defendant's right to confront witnesses against him, including cross-examination to
show a witness' interest, bias, prejudice or motive to testify falsely, is guaranteed by both the
federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8. The
"purpose of cross-examination is to introduce matters which explain, modify or discredit any of
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the evidence introduced on direct examination." People v. Adams, 111 Ill. App. 3d 658, 664
(1982). A party may use character evidence as a general attack on a witness' credibility and
cross-examination evidence of the witness' prior conduct will be relevant and admissible as long
as it bears on his credibility. People v. Di Maso, 100 Ill. App. 3d 338, 342 (1981). Convictions
may be used to attack a witness' character, but "proof of arrests, indictments, charges or actual
commission of crime are not admissible." People v. Lucas, 151 Ill. 2d 461, 491 (1992).
¶ 33 A defendant's rights under the confrontation clause for cross-examination are not
absolute; the confrontation clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way and to whatever extent the defense desires.
People v. Leak, 398 Ill. App. 3d 798, 823-24 (2010) (citing Delaware v. Fensterer, 474 U.S. 15,
20 (1985)). The trial court has broad discretion to limit cross-examination to preclude prejudice,
witness harassment, repetitive and irrelevant questioning (People v. Tabb, 374 Ill. App. 3d 680,
689 (2007)), or to exclude evidence of bias that is too remote or uncertain (People v. Prevo, 302
Ill. App. 3d 1038, 1048 (1999)). Unless the defendant can show his or her proposed line of
questioning was not based on a remote theory and that the limitation resulted in manifest
prejudice to him, "a court's ruling limiting the scope of examination will be affirmed." Tabb, 374
Ill. App. 3d at 689.
¶ 34 When a line of questioning is objected to or denied by the trial court, the defendant must
ordinarily set forth an offer of proof to convince the trial court to allow the testimony. People v.
Burgess, 2015 IL App (1st) 130657, ¶ 47. The purpose of an offer of proof is to inform the trial
court, opposing counsel and a reviewing court of the nature and substance of the evidence sought
to be introduced (Leak, 389 Ill. App. 3d at 822) and for the reviewing court to determine if the
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exclusion of evidence was proper (Tabb, 374 Ill. App. 3d at 689). When it is not clear what a
witness would say, or what the basis would be for saying it, the offer of proof must be
considerably detailed and specific. Leak, 398 Ill. App. 3d at 822. A formal offer of proof is not
typically required, however an informal offer of proof involving counsel's summary of what the
proposed evidence might prove may be sufficient if specific and not based on speculation or
conjecture. Tabb, 374 Ill. App. 3d at 689. It is well-settled that the key to preserving for review
an error in the exclusion of evidence is an adequate offer of proof in the trial court and a
defendant's failure to make such an offer of proof results in forfeiture of the issue. Staake, 2017
IL 121755, ¶ 51.
¶ 35 1. Judicial Notice of T.B.'s Juvenile Adjudication
¶ 36 In his reply brief, defendant asserts that an offer of proof was not needed to preserve
review of the trial court denying him the right to impeach T.B. with his juvenile adjudication. He
contends that we can take judicial notice of T.B.'s juvenile adjudication and purports to provide
this court with the particulars of T.B.'s adjudication. Defendant, however, did not file a motion
requesting judicial notice, nor was the adjudication included in the record on appeal. He is now
purporting to make his offer of proof under the auspices of judicial notice, and contends that we
can take notice of public documents included in the records of the juvenile court because the
records contain "readily verifiable facts." He cites May Department Stores Co. v. Teamsters
Union Local No. 743, 64 Ill. 2d 153 (1976), in support.
¶ 37 In May Department Stores, our supreme court held that it could take judicial notice of
letters from an administrative tribunal in related proceedings because the plaintiff included them
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in the record on appeal, and they were public documents that could be easily verified in the
records of the other administrative courts. May Department Stores, 64 Ill. 2d at 159.
¶ 38 However, defendant's reliance on May Department Stores is misplaced. Here, defendant
improperly attempts to provide the details of T.B.'s adjudication in his reply brief without a
motion requesting its inclusion or providing this court with the adjudication in violation of Rule
341(h)(7) ("Points not argued are forfeited and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing"). Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).
Additionally, defendant mistakenly contends that T.B.'s juvenile adjudication is of public record;
however, the Juvenile Court Act of 1987 (705 ILCS 405/5-150 (West 2012), which governs the
admissibility of juvenile records in other proceedings, generally presumes juvenile adjudications
to be confidential and not to be public documents. See In re J.R., 307 Ill. App. 3d 175, 180
(1999). Further, the record reflects that defendant did not present T.B.'s juvenile adjudication to
the trial court. This court has previously held that if a party wishes to have a fact judicially
noticed on appeal, he must bring the matter to the lower court's attention on the record (People v.
Barham, 337 Ill. App. 3d 1121, 1129 (2003)); a reviewing court will not take judicial notice of
new critical evidentiary material that was not presented to, and not considered by, the fact finder
(People v. Boykin, 2013 IL App (1st) 112696, ¶ 9). Thus, defendant cannot present T.B.'s
adjudication to this court under judicial notice.
¶ 39 2. Offer of Proof Exceptions under Lynch
¶ 40 Defendant also cites to People v. Lynch, 104 Ill. 2d 194 (1984), in his reply brief to
support his contention that he did not need a formal offer of proof to preserve review of these
two issues. As to T.B., defendant asserts that the offer of proof requirement was relaxed because
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trial court misapplied the law that T.B.'s juvenile adjudication was per se inadmissible for
impeachment and the court's demeanor towards defense counsel prevented an opportunity for
him to make an offer of proof. See Lynch, 104 Ill. 2d at 204. As to Caldwell, defendant asserts
that the context, circumstances and questions themselves clearly indicated the purpose and
substance of what defendant wished to question Caldwell about. See Lynch, 104 Ill. 2d at 204.
Defendant's reliance on Lynch is misplaced.
¶ 41 In Lynch, as part of his self-defense theory, the defendant sought to introduce evidence on
cross-examination of the State's witness of the deceased victim's prior convictions. Lynch, 104
Ill. 2d at 199. The State objected, and the trial court ruled that the victim's prior convictions were
inadmissible and irrelevant. Lynch, 104 Ill. 2d at 199. On appeal, the appellate court concluded
that the defendant could not attack the "exclusion of the character evidence because he had failed
to make an offer of proof." Lynch, 104 Ill. 2d at 202. Our supreme court reversed, and held that
no formal offer of proof was necessary because the trial court's hostility towards defendant
prevented an opportunity to make such an offer. Lynch, 104 Ill. 2d at 202. The court also held
that no offer of proof was necessary and the defendant could attack exclusion of the conviction
evidence because the State's discovery evidence provided the defendant with the knowledge of
the victim's three recent convictions; the court only needed to decide the legal issue of whether
evidence of those convictions was admissible. Lynch, 104 Ill. 2d at 202. The court continued that
if the question showed the evidence's purpose and materiality, was in the proper form and clearly
elicited a favorable answer, then a formal offer of proof was not necessary unless the trial court
asked for one. Lynch, 104 Ill. 2d at 202.
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¶ 42 We find Lynch to be distinguishable because "[t]he purpose of an offer of proof is to
enable the courts to decide the case on adequate facts" (Lynch, 104 Ill. 2d at 202), and in that
case, the court had all facts needed to determine whether the impeachment evidence was
admissible without an offer of proof.
¶ 43 Here, unlike in Lynch, there is no evidence that the trial court was hostile towards defense
counsel nor that he had no opportunity to present evidence to the trial court about T.B.'s juvenile
adjudication. After the trial court ruled that juvenile adjudications were per se inadmissible,
defendant had an opportunity to request a sidebar or further discuss why T.B.'s purported
conviction for residential burglary was important for impeachment purposes when the court
asked, "Anything else[,]" but defendant did not. This failure to make any offer of proof left the
trial court without information as to the nature of the juvenile offense or any opportunity to
revisit the ruling. See People v. Bowman, 2012 IL App (1st) 102010, ¶ 36.
¶ 44 As to Caldwell's cross-examination, unlike in Lynch, defense counsel's questions as a
whole did not show the purpose and materiality of the evidence, were not in a proper form and
did not admit a favorable answer. In the 15 objections made during Caldwell's cross-
examination, the trial court first overruled the State's objection to a question asking if Caldwell
had been arrested in connection with this shooting. The State's 14 later objections concerning
whether Caldwell was charged with aggravated battery or as an accessory were sustained. First,
the questions were not in a proper form under the Lynch standard because defendant's questions
attempted to impeach Caldwell with evidence of his arrests, which is not admissible on cross-
examination to attack a witness' character. See Lucas, 151 Ill. 2d at 491; Lynch, 104 Ill. 2d at
202-03. Second, after the trial court sustained the State's later objections, defendant did not ask
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for a sidebar or make a request to show how his questions about whether Caldwell was charged
with any crimes materially showed that Caldwell had a motive to lie. Lynch, 104 Ill. 2d at 202.
This failure to follow the Lynch guidelines to admit the evidence without an offer of proof or to
make an offer of proof, left the trial court without the necessary facts to reconsider its ruling or
determine whether the evidence was directly related to the issue of Caldwell's potential bias or
motive to falsely testify. See Bowman, 2012 IL App (1st) 102010, ¶¶ 53-54.
¶ 45 Accordingly, we find that the Lynch exceptions to the offer of proof requirements do not
apply. As defendant did not make an offer of proof of the impeachment evidence he sought to
have admitted, he has therefore forfeited review of whether T.B.'s juvenile adjudication was
admissible for impeachment on cross-examination, and whether the trial court improperly
sustained the State's objections to his questions to Caldwell about his potential bias or incentive
to lie. See Staake, 2017 IL 121755, ¶¶ 51-53.
¶ 46 3. Plain Error
¶ 47 Further, although this court may apply the doctrine of plain-error to address forfeited
errors, this is not a proper case to invoke it. We can consider unpreserved error when either (1)
the evidence is close, regardless of the seriousness of the error, or (2) the error is serious,
regardless of the closeness of the evidence. People v. Hudson, 228 Ill. 2d 181, 191 (2008).
Defendant has made no such argument or showing. Additionally, even if we applied plain error
review, the first step is to determine whether any error occurred. People v. Lewis, 234 Ill. 2d 32,
43 (2009). However, defendant's failure to make an offer of proof at trial precludes our ability to
take the first step. People v. Shenault, 2014 IL App (2d) 130211, ¶ 13. As such, we will honor
the procedural default.
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¶ 48 B. Improper Burden Shifting
¶ 49 Defendant next contends that the State used the phrase "up here" twice during its rebuttal
argument in reference to evidence presented during the trial which could be interpreted as
shifting the burden of proof from the State to him. He also contends that it was an improper
comment on defendant's decision not to testify. He further asserts that the trial court improperly
overruled his objection to the comments. He claims that, because of the tenuous nature of the
State's case and its efforts to distract the jury from Caldwell's unreliable testimony, these errors
were not harmless beyond a reasonable doubt. He contends that we should remand for a new
trial.
¶ 50 Defendant objected to two closely related remarks the State made in rebuttal closing
argument after stating that Caldwell identified defendant as the shooter: "There's no evidence
that indicates otherwise up here. Did you hear anything up here that indicates anything else than
the defendant being the shooter?" Defendant objected and reminded the court that the burden
was not on him. The trial court overruled defendant's objections to the State's remarks, stating,
"[h]e wasn't shifting the burden at all. He said from up here. Overruled."
¶ 51 We must determine whether the comments made by the State during its rebuttal
constituted error.
¶ 52 While a prosecutor is allowed wide latitude during closing argument (People v. Wheeler,
226 Ill. 2d 92, 123 (2007)), a party does not have the right to make closing statements that go
beyond the evidence presented, the inferences that can be made, or to misstate the law (People v.
Woolely, 178 Ill. 2d 175, 209 (1997)). The State can, however, point out in closing arguments
that its evidence has not been contradicted. People v. Keene, 169 Ill. 2d 1, 21 (1995). The State
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can also comment on evidence that defendant presents. People v. Jackson, 2017 IL App (1st)
142879, ¶ 61.
¶ 53 A defendant has the constitutional right not to testify on his own behalf, and the State
may not make direct or indirect comments on whether defendant exercised that right. People v.
Herrett, 137 Ill. 2d 195, 210–11 (1990) (citing Griffin v. California, 380 U.S. 609, 613 (1965)).
A reviewing court should consider whether the prosecutor's comment was "intended or
calculated" to direct the jury's attention to the defendant's decision not to testify. Jackson, 2017
IL App (1st) 142879, ¶ 60. If the State is motivated to demonstrate the absence of any
evidentiary basis for defense counsel's argument rather than for a purpose of calling attention to
the fact that defendant had not testified, such comments in closing argument will be permissible.
People v. Smith, 402 Ill. App. 3d 538, 543 (2010). Moreover, a defendant cannot ordinarily claim
error where the prosecutor's remarks are in reply to, and may be said to have been invited by,
defense counsel's argument. Smith, 402 Ill. App. 3d at 543.
¶ 54 Remarks made during closing arguments must be examined in the context of both parties'
arguments and must always be based upon the evidence presented or reasonable inferences to be
drawn therefrom. People v. Coleman, 201 Ill. App. 3d 803, 807 (1990). "Because the trial court
is in a better position than a reviewing court to determine the prejudicial effect of any remarks,
the scope of closing argument is within the trial court's discretion" (People v. Hudson, 157 Ill. 2d
401, 441 (1993)), and we review the trial court's overruling of a defendant's objection to the
prosecutor's closing remarks under an abuse of discretion standard (People v. Cook, 2018 IL App
(1st) 142134, ¶ 64).
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¶ 55 During its closing argument, the State discussed T.B.'s testimony, including that T.B. saw
defendant and Caldwell in the Camaro and identified them both in a lineup. The State also
reviewed Caldwell's testimony at trial which stated that defendant was the shooter. The State
then described the attempted first degree murder and aggravated battery charges against
defendant, and described the trial testimony and evidence it believed established each element of
the offenses.
¶ 56 In her closing argument, defense counsel stated that Caldwell had a motive to lie to
protect himself, keep himself off the "hotplate" and hide what really happened that day; and that
the police could not have gotten such a clear description from T.B. about defendant and Caldwell
based on T.B.'s brief interaction with them.
¶ 57 In rebuttal, the State responded that the jury could only consider the evidence that it heard
on the witness stand, and that they should not "be confused by anything else." The State further
stated that defendant was the shooter, based on Caldwell's testimony, and said, "there's no
evidence that indicates otherwise up here."
¶ 58 Viewed in context of both parties' arguments, it is clear that the State's comments were
not a comment on defendant's decision not to testify because the State never mentioned
defendant or his failure to testify. The State's closing argument focused on summarizing the
testimony of T.B., Caldwell, and other witnesses, and how that evidence established the required
elements for the jury to convict defendant of attempted first-degree murder and aggravated
battery with a firearm. The State's comments were a direct response to defense counsel's
arguments that Caldwell had a motive to lie when he testified at the trial, and we find that
defendant invited the State's rebuttal remarks that there was nothing "up here" in evidence to
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support defendant's conclusions. We conclude that the State did not make improper remarks
during closing argument that shifted the burden to defendant. Accordingly, the trial court did not
abuse its discretion in overruling defendant's objection. Cook, 2018 IL App (1st) 142134, ¶ 64.
¶ 59 C. Jury Instructions on Lesser-Included Offense
¶ 60 Defendant next contends that the trial court erred when it refused his request to instruct
the jury on aggravated discharge of a firearm as a lesser-included offense of aggravated battery
with a firearm. As previously noted, the State nol-prossed the charge of aggravated discharge of
a firearm prior to trial, and defendant was tried only on attempted murder and aggravated battery
with a firearm. Defendant asserts that the trial court improperly denied his request because the
evidence in this case would have allowed the jury to rationally find him guilty of aggravated
discharge of a firearm as a lesser-included offense of aggravated battery and acquit him of the
greater offense.
¶ 61 "Giving a lesser-included offense instruction provides an important 'third option' to the
jury because '[i]f a jury believes that a defendant is guilty of something, but uncertain whether
the charged offense has been proved, the jury might convict the defendant of the lesser offense
rather than convict or acquit the defendant of the great offense.' " People v. Willett, 2015 IL App
(4th) 130702, ¶ 58 (quoting People v. Ceja, 204 Ill. 2d 332, 359 (2003)).
¶ 62 A defendant is entitled to a lesser-included offense instruction only if the evidence at trial
is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him
of the greater. People v. Medina, 221 Ill. 2d 394, 405 (2006); People v. Garcia, 188 Ill. 2d 267,
284 (1999). See also Schmuch v. United States, 485 U.S. 705, 716 n. 8 (1989); Keeble v. United
States, 412 U.S. 205, 208 (1973). That evidentiary prerequisite must be met before a right to
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have the jury instructed on a lesser-included offense arises. Medina, 221 Ill. 2d at 405; People v.
Baldwin, 199 Ill. 2d 1, 13 (2002).
¶ 63 An "included offense" is an offense "established by proof of the same or less than all of
the facts or a less culpable mental state (or both), than that which is required to establish the
commission of the offense charged." 720 ILCS 5/2-9(a) (West 2012). Our supreme court has
identified three possible approaches to determining whether a lesser offense is included in a
greater offense: (1) the abstract-elements approach; (2) the charging-instrument approach; and
(3) the factual approach. People v. Miller, 238 Ill. 2d 161, 166 (2010).
¶ 64 As a reviewing court should only examine whether trial evidence supported a conviction
on the lesser offense after determining whether the uncharged offense is a lesser-included
offense of a charged crime (People v. Kolton, 219 Ill. 2d 353, 361 (2006)), we will first
determine if the nol-prossed aggravated battery with a firearm charge is a lesser-included offense
of aggravated battery with a firearm.
¶ 65 People v. Banks, 260 Ill. App. 3d 464 (1994), a case cited by the State, is instructive. In
that case, the defendant was convicted of three counts of aggravated battery with a firearm for
shooting three victims and three counts of aggravated discharge of a firearm for shooting in the
direction of the same three victims. On appeal, we concluded aggravated discharge of a firearm
was not a lesser-included offense of aggravated battery, and they were distinct offenses. Banks,
260 Ill. App. 3d at 472. Specifically, we stated:
"There is no dispute that the two offenses at issue
are distinct and the statutory scheme for the offenses does not
establish a lesser included offense. Aggravated discharge of a
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firearm is distinct to and not a lesser included offense of aggravated
battery with a firearm because conviction for aggravated battery
with a firearm requires knowingly causing injury with firearm,
while conviction for aggravated discharge of a firearm requires
discharge of firearm in the direction of another person."
(Emphasis in original.) Banks, 260 Ill. App. 3d at 472.
¶ 66 Similarly, in this case, the trial court found that the trial evidence did not support a jury
instruction for aggravated discharge of a firearm because T.B. was shot twice, thus constituting
aggravated battery, and that the record indicated that defendant fired additional shots towards the
group. By continuing to shoot once T.B. was on the ground, defendant knowingly caused his
injury; this action was a distinct act from shooting in T.B.'s direction because knowingly causing
injury requires a different mental state. See Banks, 260 Ill. App. 3d at 470. We find that the trial
court was not required to provide a jury instruction for aggravated discharge of a firearm because
it is a separate and distinct offense from aggravated battery with a firearm. Banks, 260 Ill. App.
3d at 472.
¶ 67 D. Excessive Sentence
¶ 68 Finally, defendant contends that his 14-year sentence was excessive for a first time felony
offense in light of his substantial mitigating evidence: he has two children, a close relationship
with his family, and he got his GED after leaving high school.
¶ 69 In imposing a sentence, a trial court must carefully consider all factors in aggravation and
mitigation. People v. Jackson, 357 Ill. App. 3d 313, 329 (2005). A trial court has broad
discretion in imposing a sentence because it is generally in a better position than a reviewing
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court to determine a proper sentence. People v. Stacey, 193 Ill. 2d 203, 209 (2000). Whether a
sentence is proper is reviewed for an abuse of discretion. People v. Geiger, 2012 IL 113181,
¶ 27. When the trial court imposes a sentence within the statutory guidelines for the offense the
defendant was convicted of, a reviewing court presumes the sentence was not an abuse of the
trial court's discretion (Bowman, 2012 IL App (1st) 102010, ¶ 72) unless it is "greatly at variance
with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense"
(Stacey, 193 Ill. 2d at 210).
¶ 70 Defendant was convicted of aggravated battery with a firearm, a Class X felony
punishable by a 6- to 30-year sentence. 730 ILCS 5/5-4.5-25(a) (West 2012). At sentencing, the
trial court specifically stated that it considered the various letters from members of defendant's
family and that defendant had no prior adult record. The court further stated that while it had
compassion for defendant's children, defendant's crime was based on retaliation that resulted in
serious injury. Defendant's sentence is eight years more than the minimum, which is not
"manifestly disproportionate to the nature of the offense" (Stacey, 193 Ill. 2d at 210), because
T.B. was seriously injured by defendant's actions. Thus, we find that defendant's sentence was
not excessive and it was not an abuse of discretion for the court to sentence him to 14 years.
¶ 71 CONCLUSION
¶ 72 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 73 Affirmed.
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